False Analogies

The ACLU is no stranger to hypocrisy (to facilitate fundraising, it has voluntarily pledged to comply with federal blacklisting law that it otherwise opposes;) but it is not guilty of the inconsistencies that James Huffman imagines in his National Law Journal column.The ACLU’s criticism of Charles Stimson’s attacks on lawyers defending Guantanamo detainees was not at all inconsistent with its previous expressions of concern about the record of then Supreme Court nominee John Roberts.

Put aside, for the moment, the factual elisions in Huffman’s column; Stimson’s comments about Guantanamo lawyers and the ACLU’s comments about Roberts are simply not analogous. Stimson was a government official who attacked the patriotism and ethics of lawyers representing people whom the government had summarily detained; he even urged that law firms involved in defending detainees be blackballed. The ACLU is a civil liberties organization (representing over a half million Americans) that expressed concerns about the civil liberties record of a Supreme Court nominee, who seemed poised to tip the balance of the Court. ACLU officials did not "impugn" Roberts, as Stimson impugned the integrity of Guantanamo lawyers; they raised serious questions (which they urged the Judiciary Committee to raise) about his stance on civil liberties.

Huffman’s account of the ACLU’s opposition to Roberts is a little misleading. In fact the ACLU did not formally oppose Roberts as Huffman states, although it stressed concerns about his views on rights and liberties, after after carefully examining his record. The ACLU issued a comprehensive, 45 pagereport on Roberts’ record, as a judge, a Deputy Solicitor General, and a lawyer in private practice. That report was submitted to the Senate Judiciary Committee, along with a 10-page letterto Senators Specter and Leahy -- the letter that Huffman cites but, tellingly, does not supply (although it is posted on the ACLU website.)

The ACLU’s letter explicitly acknowledges that a lawyer should not be presumed to share the views of people he represents: "The challenge in reviewing John Roberts’ record is that, as with any advocate, his litigation positions may not necessarily reflect his personal views." But that caveat did not make his record as an advocate irrelevant, especially when he had scant judicial experience.

So, in reporting on Robert’s record and urging the Senate to advise if not consent on his nomination by questioning him about civil liberties, the ACLU was not impugning anyone. It was simply doing its job. By launching a personal attack on lawyers who represented Guantanamo detainees, Charles Stimson was doing the dirty work.